On Jan. 17, Irish 4 Reproductive Health (I4RH) — the independent reproductive rights group at Notre Dame — announced their group had been cleared to proceed in their lawsuit against Notre Dame after the University announced they would restrict access to certain forms of birth control for those people receiving insurance coverage through the University.
The lawsuit was filed in June of 2018 and says the University and the Trump administration reached an “unlawful” agreement which would allow the University to refuse to cover certain forms of birth control under the insurance plan.
“The lawsuit was filed ... in response to the Notre Dame administration announcing that it would be restricting access to insurance coverage for birth control,” sophomore and co-leader of I4RH Sophia Kics said in an email. “This [announcement] came after the Trump administration’s back-door deal with Notre Dame and 73 other institutions that allowed for them to deny birth control coverage on the basis of religious beliefs. Prior to this, the university had been waging a legal battle against the Affordable Care Act’s mandate that many women’s health services (including contraception) be provided without cost sharing, and they had been unsuccessful until this point.”
Graduate student and founding member of I4RH Kate Bermingham said at the time of the University's announcement, Notre Dame was not “incurring any direct costs for birth control” for those who were receiving access to contraception under the University insurance plan.
“What they decided to do when they got a green light from the Trump administration was to actually use their economic position as an employer to prevent people who had insurance through the university from accessing the supplemental plan that they were not paying for whatsoever at the time,” Bermingham said.
I4RH advocates for access to contraception on campus, especially for those insured under University health plans.
The lawsuit, filed in the spring of 2018, is being co-sponsored by several nonprofit organizations — the National Women’s Law Center (NWLC), Americans United for Separation of Church and State (AUSCS) and the Center for Reproductive Rights — as well as the law firms Fried Frank and Macey Swanson.
“Our rights are being violated. It was clearly a violation of the Affordable Care Act,” Bermingham said. “We tried, first, to deal with this through advocacy on campus, through trying to talk to Fr. Jenkins and his advisors, and it seemed clear that was not going to amount to success for us.”
Bermingham said the agreement reached between the University and the Trump administration was “really problematic” because it could set a legal precedent that Notre Dame is exempt from future federal regulations.
“Yeah, Notre Dame is a private institution. It still has to follow the law, right?” Bermingham said. “Once we realized the gravity of the situation and the way that the University's policies were really an attempt to circumvent the law, that's what prompted the lawsuit to move forward, [or] at least prompted our participation in the lawsuit.”
Bermingham said that the administration’s policies have directly affected her and people in her life, and her efforts have been a “very formative but also kind of unfortunate” part of her time at the University.
“This is something that has directly impacted my progress towards the degree that I came to Notre Dame to obtain. That's true for so many people that I know,” Bermingham said. “And this really is an issue of gender justice at Notre Dame, right? You have people who could become pregnant who are spending an inordinate amount of time and money dealing with something that is basic health care and would be considered so at any other university.”
Kics said the lawsuit has helped to bring the work that I4RH does to provide contraception access at Notre Dame to light.
As for the next steps, Bermingham said all the advocacy is being handled by the nonprofits who filed the suit — the NWLC, Center for Reproductive Rights and the AUSCS.
“I assume that Notre Dame's lawyers, and the Trump administration's lawyers will try to appeal," Bermingham said. “... And I think there’ll be another court date eventually. So basically, both sides are kind of preparing their cases at this time.”
Kics said she hopes that the lawsuit’s success for I4RH would allow students to have greater access to contraception and sexual health resources under University health insurance coverage.
“Ideally, all students and staff would have access to these resources whether they are insured or not,” Kics said. “... But for the time being, I think that this coverage is a feasible goal."
Bermingham said her hope for the lawsuit is Notre Dame employees and students who are insured under the University’s plan would be able to have greater autonomy in their reproductive healthcare options.
“You know, your employer should not be able to dictate what form of birth control you have access to,” Bermingham said. “That should be a decision that you are able to make with your doctor.”
Kics said the lawsuit’s success would make Notre Dame a more inclusive and welcoming place.
“Notre Dame champions a ‘spirit of inclusion’ and encourages students from diverse backgrounds to apply, but imposing Catholic values upon the health of all students and staff members is certainly not an inclusive practice,” Kics said.
Kics said that having access to birth control and sexual health resources is especially important for groups who have historically experienced discrimination and marginalization.
“Restricting access to birth control further places a person’s health into the hands of their financial resources, and for historically and systematically marginalized groups this simply may not be feasible,” Kics said. “Birth control and sexual health resource coverage would make Notre Dame a more inclusive place for people of color, survivors of sexual assault, members of the LGBTQ+ community and anyone else who is marginalized in any way.”
When asked for comment, Paul Browne, vice president for public affairs and communications for the University, gave the following statement.
“Notre Dame stands on firm legal and moral ground in refusing to subsidize the limited number of contraceptive products that can act as abortifacients and harm an unborn child,” Browne said.
Irish 4 Reproductive Health members discuss lawsuit against University
Kelli Smith
In October 2017, the U.S. Department of Health and Human Services reversed a mandate that required employers to offer insurance that included coverage of all FDA-approved contraceptives. When University President Fr. John Jenkins released a statement welcoming the change, Notre Dame community members gathered to protest anticipated changes to Notre Dame's birth control coverage.
